The Federation Press

Treaty and Statehood

Aboriginal Self-determination

Overview

If governments of Australia agreed to share power with Aboriginal people, what would the result be? And if Australia was to have a settlement or a treaty with Aboriginal and Torres Strait Islanders, what would a treaty deal with and how would a treaty affect the general public? Is there anything beyond a treaty?

Treaty and Statehood: Aboriginal Self-determination, by Aboriginal author Michael Mansell, answers these questions and more. Mansell examines the New Zealand model of designated Māori seats and applies the idea to comprise 12 Indigenous Senators in Australia. He argues designated seats and a treaty are constitutionally permissible, and details the possible content for a treaty. He discusses the meaning of self-determination and its limitations, and also thoroughly reviews Aboriginal sovereignty and its function in a modern Australia.

The book critically examines the legality of designated seats, treaty, sharing of power and autonomous communities. The legal examination is broken down into easy-to-understand language. Ultimately, Mansell looks at whether justice can best be served to Aboriginal people through a new State of Australia.

This new idea of a seventh State – or First State for the First peoples, as the author prefers – is constitutionally legal. Its practicality is also critically examined, including the rights each Aboriginal community or ‘nation’ would have under statehood.

This is a book that answers our query about what reconciliation ultimately means and how it can be achieved.

Table of Contents

Foreword by Geoffrey Robertson QC
Acknowledgments

Introduction

Chapter 1: Setting the scene

Chapter 2: Accommodation of Aboriginal rights in a democracy

Chapter 3: The electoral system

Unfair electorates
Overseas experience
Are designated seats constitutionally legal?
Twelve Indigenous Senators

Chapter 4 Aboriginals and the Australian Constitution

The nature of the Australian Constitution
A constitutionally entrenched Indigenous advisory body
Race and anti-discrimination in the Constitution
The race power: s 51(xxvi) of the Australian Constitution
       Case 1: Bropho v Human Rights and Equal Opportunity Commission
       Case 2: Maloney v The Queen (Palm Island Liquor Case)
       Case 3: Bropho v Western Australia
The relevance of s 25
A missed opportunity
Legislation

Chapter 5: Aboriginal sovereignty

What is sovereignty?
Aboriginal sovereignty today
Sovereignty inside Australia
Popular sovereignty
Loss of Aboriginal sovereignty through assimilation and citizenship
Sovereignty at work

Chapter 6: Treaty

Part I: The preliminaries

Treaty defined
Inherent Indigenous rights
Purpose and effect of a treaty
Are there any legal impediments to making an agreement or treaty with the Indigenous peoples?
Over-arching treaty or many treaties?

Part II: Minimum content of a treaty

Minimum content
Sovereignty and treaty
Restore, exclude and accommodate
      (a) Restore
      (b) Exclude
      (c) Accommodate what is left over

Part III: An Australian treaty

What might be in a treaty
      (a) Cleansing the past
      (b) Land
      (c) Empowerment
      (d) Social development, cultural retention and education
      (e) Finances
Lessons from near and afar
Treaty enforcement

Chapter 7: Treaty-making process

Negotiating stage
Settlement: One New Zealand experience
      The A Team: The principals
      The B Team: The overall negotiating group
      The C Team: The specialist groups
Post-settlement

Chapter 8: Self-determination

The international source for self-determination
Whom does this right apply to?
All peoples have the right to self-determination
Under what circumstances does self-determination apply?
The four criteria for statehood and its link to self-determination
      Working government
      Clear support for independence
      International benefactor
The Australian position
The divide between law and politics

Chapter 9: Aboriginal statehood: A new First state

A new State from an old nation
Territory must be identified before the Commonwealth can legislate a new State
States surrendering territory to new State
Viability of new State
Crown lands as waste lands?

Chapter 10: A new State in operation

Customary law
Limits and restrictions on customary law
Land rights and native title lands under statehood?
One Aboriginal nation or many?
Constitutional limitation on Commonwealth interference
Preamble to new State Constitution
The Racial Discrimination Act and Aboriginal statehood
‘Expanded’ Aboriginal State responsibility

Chapter 12 : Incremental steps

Campaigning for a new State
Independent endorsement for statehood
Learning from the experience of earlier movements
Plebiscite for statehood and territory
A federal Aboriginal territory

Conclusion

Bibliography

Index

Of interest...